Pan v. Holder, No. 12-1887

Decided: December 17, 2013

The Fourth Circuit Court of Appeals affirmed the district court’s denial of defendant’s application for asylum and withholding of removal based on his claim that government officials would sterilize him if he returned to China. The Fourth Circuit also affirmed the denial of his claim under the Convention Against Torture (“CAT”).

In November 2008, defendant Hui Pan (“Pan”) left his home in China for Baltimore, Maryland. He arrived in the United States without valid entry documents, and the Department of Homeland Security (“DHS”) detained him and conducted a credible fear interview. Pan claimed that, if he returned to China, family planning officials would forcibly sterilize him for violating China’s one-child policy. Pan and his wife already had one child when his wife became pregnant in November 2008 and was, according to Pan, forced to have an abortion. Pan stated that, following the abortion, officials found his wife was “not suitable” for sterilization and that Pan would have to be sterilized instead.

The Fourth Circuit reviewed the lower courts’ adverse credibility determination, regarding Pan’s testimony and corroborating documents, using the “substantial evidence” standard.

The Immigration and Nationality Act (the “INA”) authorizes the Secretary of Homeland Security or the Attorney general to confer asylum on any alien who establishes refugee status. An applicant for asylum may prove refugee status by showing either that they were subjected to past persecution or that they have a well-founded fear of future persecution on account of one of the enumerated grounds. Pan attempted to demonstrate a well-founded fear of future persecution—that family-planning officials would sterilize him if he were removed to China. The “well-founded fear of persecution” standard has both a subjective and objective component. The subjective part requires credible testimony demonstrating a genuine fear of persecution. The objective part requires specific, concrete facts that would lead a reasonable person in like circumstances to fear persecution. A determination that the applicant’s testimony is not credible will generally defeat the subjective component. The Fourth Circuit concluded that the lower courts’ adverse credibility finding was supported by substantial evidence.

First, Pan’s testimony regarding why his wife could not be sterilized – resulting in the government’s decision to sterilize him – was vague and unclear. To corroborate his story, Pan offered a photocopy of a “Fujian Women and Children Health Center Disease Explanation Form,” which had an illegible signature and did not elaborate on his wife’s “skin disease” or explain the “operation” referenced. Next, Pan offered vague and inconsistent testimony regarding the circumstances of his flight from China to the United States. Pan’s testimony during his interview conflicted with statements on his asylum application. Even though Pan suggested these inconsistencies were due to a language barrier, the Fourth Circuit found Pan’s testimony not credible. Finally, the Fourth Circuit affirmed the lower courts’ conclusion that Pan’s corroborating documentation was unreliable and failed to rehabilitate Pan’s testimony. Pan failed to authenticate the documents by not making any attempt to establish how he acquired them or that they were genuine. Pan did not call his uncle as a witness to verify that he received the documents from China. In addition, the Fourth Circuit affirmed the lower courts’ conclusion that some of the documents were inherently unreliable. For example, the sterilization notice was a photocopy of an unsigned document allegedly issued by local officials. In addition, the disease explanation form did not legibly identify the doctor who purportedly created the form and set forth a confusing and vague description of the skin condition that rendered Pan’s wife unsuitable for sterilization. Finally, the Fuzhou Surgery Certificate, which purportedly established that an abortion was performed, conflicted with Pan’s testimony regarding how many months his wife was into her pregnancy when she had the abortion.

Full Opinion

– Sarah Bishop

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